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In last case of Obama presidency, are high-level government officials above the law?

On January 18, 2017, CCR will argue the last case to be heard by the U.S. Supreme Court during Obama’s presidency, Ziglar v. Abbasi, which by the time it is decided may become the most important case of the Trump Presidency. Today, we filed our brief, which asks the Court to ensure that high-level government officials are held accountable when they violate the Constitution. Ziglar is a critical case at this frightening time, representing a test as to whether the Court will fulfill its role as an essential check on aggressive, discriminatory and illegal executive actions.

The case arises from the federal government’s post-9/11 secret round up and, in many cases, brutal detention of more than 700 Muslim, Arab, and South Asian non-citizens for the pretextual reason that these men had committed (mostly routine) civil immigration violations. The case alleges that former Attorney General John Ashcroft created and implemented a policy of rounding up and detaining Arab and South Asian Muslims to question about terrorism shortly after 9/11. Former FBI director Robert Mueller, departing from FBI practice, ordered that all citizen tips be thoroughly investigated, even those that were based nothing more than religion or ethnicity, such as reports of “Arabs” working long hours, or “Middle Eastern” men renting post office boxes. For example, one of CCR’s clients came to the FBI’s attention when his landlord called an FBI hotline to report that she rented an apartment to several Middle Eastern men, and that she “would feel awful if her tenants were involved in terrorism and she didn’t call.” Ashcroft ordered that the Arab and Muslim men who were arrested nevertheless be held as suspected terrorists until cleared by the FBI—turning the presumption of innocence on its head. Cut off from family and the outside world, many languished for months in the equivalent of solitary confinement for little more than overstaying a visa. Those who lived through the abuse have been fighting for accountability for more than 14 years.

Two government reports released by the Office of the Inspector General in April and December of 2003 documented the detentions, and the ways men held in one facility, the Metropolitan Detention Center (MDC) in Brooklyn, were abused, beaten and harassed.

At MDC the 9/11 detainees were held in solitary confinement, locked for 23 hours a day in tiny cells with constant illumination, denied access to the outside world—including to an attorney—arbitrarily strip-searched, deprived of adequate food and denied basic personal items like soap and toilet paper, and subjected to sleep deprivation and interference with their religious practices. Guards called them “terrorists” and shouted “Jesus” while they tried to pray. Upon entering MDC, many of the men had their faces smashed into a wall, where guards had pinned a t-shirt with a picture of an American flag and the words “These colors don’t run,” and were told, “Welcome to America.” The bloodied t-shirt hung on the wall at MDC for months.

In 2002, CCR sued those who ordered and carried out the detentions, from those at the highest levels of the Bush administration down to prison wardens and guards. At every step of the way, courts have ruled that lower-level officials—wardens and guards—can face accountability for their role in these brutal and discriminatory detentions. In June of 2015, the Second Circuit Court of Appeals also ruled that the cabinet-level officials could also be held accountable for ordering racial and religious profiling and for abusive prison conditions.

CCR’s position throughout the case has been simple: no one is above the law. If government officials break the law—no matter how high up in government they are—they may be held accountable, personally liable to the victims of their actions. In its landmark 2015 ruling, the Second Circuit Court of Appeals agreed, ruling that 9/11 was no excuse for constitutional violations. Now, the Supreme Court must decide whether it will affirm this fundamental principle. As today’s brief explains:

The import of Petitioners’ argument is that no remedy is available even if their conduct was so clearly unconstitutional that they should have known it was impermissible at the time. The message of such a ruling would be clear: high-ranking law enforcement officials may deliberately decide to violate the Constitution without fear of accountability. This Court should not send such an extraordinary message.

Ziglar v. Abbasi is a defining moment for the rule of law. Along with some of CCR’s other cases challenging torture, extraordinary rendition and arbitrary detention, it takes us back to the worst abuses of the Bush Administration’s post 9/11 responses. But, it also lunges us forward into a world where potentially unchecked executive power will fall into the hands of an extremely dangerous man. In the way that CCR’s case Rasul v. Bush, which challenged indefinite detention at Guantánamo, marked the first significant check on the Bush administration, Abbasi brings us to a watershed moment in a Trump administration—one in which the court must confront what can happen when executive officials can—with impunity—engage in racial or religious profiling and mistreat individuals in federal custody. This is the Court’s first and most important opportunity in the Trump era to make sure the extraordinary does not become ordinary.